TUMANDAO MARYFLOR ANGCO v. TORTURE CLAIMS APPEAL BOARD

HCAL 135/2022

[2025] HKCFI 5433

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 135 OF 2022

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

	consideration of the documents only; or
	consideration of the documents and oral submissions by the applicant or counsel in open court;

1.  On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board” and the decision in respect of which relief is sought be amended to “Torture Claims Appeal Board’s decision dated 23 December 2021”. 

2.  The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the applicant:

The Leave Application

1.  By way of Form 86 dated 9 February 2022 and filed on 10 February 2022, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of a decision dated 23.12.2021 without identifying the decision maker.

2.  The Torture Claims Appeal Board (“the Board”) made a decision dated 23 December 2021 (“the Board’s Decision”) in respect of the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 13 May 2021. It is clear that the date of the decision that the applicant put in Form 86 is the date of the Board’s Decision, and hence the Leave Application should be in respect of the Board’s Decision. The Board’s Decision can be viewed in the following hyperlink:

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2022/HCAL000135_2022_files/the_Board's_Decision.pdf

3.  The Board found that the applicant’s claim for non-refoulement protection failed on all the applicable grounds under the Unified Screening Mechanism (“the USM”). Hence, the Board affirmed the decision of the Director of Immigration (“the Director”) dated 13 May 2021, which rejected her non-refoulement claim.

Amendments

4.  The applicant named the Director as both the putative respondent and the putative interested party in Form 86, when the Board should be the putative respondent.

5.  As aforesaid, the decision in respect of which relief is sought in the Leave Application should be the Board’s Decision.

6.  Thus, this court makes an order on its own motion to amend the name of the putative respondent to “Torture Claims Appeal Board” and to amend the decision in respect of which relief is sought to “Torture Claims Appeal Board’s decision dated 23 December 2021”.

The applicant’s case

7.  It is not necessary for this court to repeat the details of the applicant’s case here as the same were set out in the Board’s Decision, which can be viewed in the hyperlink above.

8.  In sum, the applicant claimed for non-refoulement protection because she feared being killed by her creditor named Nick if refouled to the Philippines. She and her then partner Arnolfo jointly borrowed a sum of 200,000 pesos from Nick in December 2017 to pay the hospital bills for the applicant’s mother who was diagnosed with breast cancer. She claimed that although she sent money to Arnolfo for repayment, he did not do so and spent the money on drugs, gambling and women. She broke up with him in June 2018 when she found out that he had a mistress and that he had not been repaying the loan.

Disposal on paper

9.  The applicant did not request for an oral hearing of the Leave Application. This court is also satisfied that the Leave Application can be disposed of based on the written materials before this court.

Grounds for judicial review

10.  The applicant is required to identify clearly the grounds for the intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

11.  The applicant did not advance any ground for her intended judicial review in Form 86, nor in her supporting affirmation dated 9 February 2022. She merely stated in the affirmation that the Board’s Decision was unreasonable and unfair.

Discussion

12.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision and intervene by way of judicial review only for errors of law, procedural unfairness, or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).

13.  Thus, despite the fact that the applicant did not advance any ground for the intended judicial review, this court will scrutinize the Board’s Decision as aforesaid.

14.  In assessing the appeal by the applicant, the Board held an oral hearing on 2 November 2021. The applicant was present and was given the chance to present her case to the Board in person. The Board carefully examined her evidence and questioned the applicant for details.

15.  As can be seen from the Board’s Decision, the Board gave very full and detailed reasoning in rejecting the applicant’s claims. The Board found it difficult to accept the applicant’s claim as credible, given her evidence that the moneylender had made no attempt whatsoever to seek repayment notwithstanding that no repayments were ever made, that her co-borrower had been in the Philippines since the loan was taken without so much as a demand for repayment. While she claimed that the moneylender asked her family for her phone number, her evidence was that he had never called her. Even if her claims about the loan were accepted as credible, she had established no credible basis for her claimed belief that her safety or her life were at serious risk should she return to the Philippines.

16.  As to the applicant’s risks on the applicable grounds under the USM, the Board found no real risk that the applicant would suffer persecution within the meaning of the RC[1]. The applicant had failed to establish any basis that she would suffer physical or mental harm amounting to torture or otherwise being deprived of her life. The elements in section 37U of the Immigration Ordinance had not been satisfied.

17.  Thus, the Board did deal with the applicant’s alleged danger in the Board’s Decision and concluded that the applicant was not entitled to non-refoulement protection on any of the applicable grounds under the USM.

18.  The Board did not consider availability of state protection and viability of internal relocation. However, as the applicant’s claims and the matters giving rise to her claims for non-refoulement protection were rejected in their entirety, it is not necessary for the Board to consider the availability of state protection.

19.  As to internal relocation, it is a well-recognised principle that the decision-maker only needs to consider internal relocation if the applicant has established that she qualifies as a refugee pursuant to Article 1A(2) of the Refugee Convention (see Robinson v SSHD & Anor [1997] EWCA Civ 3090, dated 11.7.1997). In other words, internal relocation only arises if the applicant has established a real risk of persecution in her home area (see Gardi v SSHD [2002] 1 WLR 2755).

20.  As it is the Board’s finding that the applicant had no real risk of any of the proscribed forms of harm, it is not necessary for the Board to further consider internal relocation.

21.  The finding of facts was solely within the ambit of the Board. The Board was entitled to make its own decision. This court finds nothing wrong or unreasonable in the way the Board reached its conclusion.

22.  Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no errors of law, procedural unfairness or irrationality in the Board’s Decision. The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision.

23.  As held by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, for the court to grant leave to apply for judicial review, the claim has to be a reasonably arguable claim which enjoys realistic prospects of success. It is the view of this court that the applicant has failed to establish such a claim and hence leave must be refused.

Conclusion

24.  For reasons aforesaid, the Leave Application is dismissed.

Where leave to apply has been granted, applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the respondent’s evidence

Form CALL-1